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Linux patent pool changes aim for more dynamic protection

The Open Invention Network's Linux definition is to become more dynamic with at least annual updates to the list of packages that are covered. OIN's CEO Keith Bergelt told The H that the protective patent pool for Linux is actively reaching out to the community as part of a new process to solicit nominations for packages to join the list. "The idea is to make sure that we don't lag where the market is taking Linux" he said, noting that Linux has moved into smart mobile devices, virtualisation and the cloud; areas which the old package list did not address. The previous package list and agreement had not been updated since 2005, but now the expansion includes KVM, OpenJDK, components of Android and some packages from the WebOS project.

One notable change to the Linux Definition, that will come into operation at the start of May, is an expanded exception clause. Previously, the agreement said that systems that implemented DVR functionality, Electronic Program Guides or DVD video functionality were not deemed to be covered as "Linux Environment Components" as defined by the package listing.

In the new version of the Linux Definition, this section was modified, firstly to restrict the exception to only Sony and Philips, two of the founder members of the OIN, and then to add functionality for Blu-ray, receivers, wireless networking, Content Matching, DRM, Lighting Control, User Interfaces, Digital Displays, Cameras and, in the case of Philips only, Virtualisation.

Bergelt told The H that the OIN had "essentially isolated two companies and neutralised the potential negative affects in those technology areas on all the other companies", going on to point out a positive side that "there are 436 companies who are licensees that are sharing a much broader swath of technologies and application areas".

Sony and Philips already had significant positions in DVR, EPG and DVD technology, as excepted for all licensees in the original agreement, and had not called on those exceptions. The areas "carved out" in the new agreement were not ones where he felt that either company had a strong position relative to other players, though Sony has recently acquired the Sony Ericcson business. "We're not losing a lot and we're not giving them anything as a community".

He sees the change as enabling the faster evolution of the OIN Linux Definition without losing the general support of two of the founder members, saying that the OIN had "developed a way to continue to expand the definition and to have the needs of two companies that are increasingly licensing-centric, and that participate in many patent pools, for them to continue to support Linux."

The faster evolution of the definition will be complemented, says Bergelt, by continuing programmes to acquire patents for the pool and with new "creative" agreements to obtain patents and license them back to their original owners or working with "entities that are not faring well" to acquire their assets and retain the invention teams. "We're filing forty to sixty patent applications a year on average" he notes.

The OIN is bringing in a new person to manage the Linux Defenders programme too, with more aggressive and active searches for prior art for threatening patents. The OIN also wants to up its activity in defensive publication and will be sending their new community manager, Deb Nicholson, out to events to explain how defensive publication can help by codifying prior art. "It's a wonderful antidote to a lot of the concerns the community has" he added, noting that the defensive prior art programme is very much the future of the OIN as it could help reduce the number of patents issued.